SC judge sticks to ‘4-3’ verdict as CJP seeks to ease tensions

• Justice Bandial proposes polling over two days
• ECP lawyer asks court to make Oct 8 date ‘order of the court’ to deter deviations

ISLAMABAD: The March 1 Supreme Court judgement regarding elections in Khyber Pakhtunkhwa (KP) and Punjab seems to have become a bone of contention among top judges, as Justice Jamal Khan Mandokhail, while sticking to his guns, wondered about the “order of the court” in the suo motu proceedings.

The short order has two parts, one relates to the administrative authority with which “we will deal internally by requesting the chief justice to constitute a committee”, whereas the other portion relates to the suo motu hearing which was dismissed by a majority of four to three, explained Justice Mandokhail.

Wednesday’s hearing attracted quite an interest among the politicians since a number of parliamentarians came to Courtroom No 1. To date, no ‘order of the court’ has been released and in the absence of such an order, how could April 30 be announced as the election date or its extension till Oct 8, Justice Mandokhail regretted.

In case of a split decision, the order of the court explains in the end about the “real order” and which judgement was in majority or in minority, Justice Mandokhail observed, adding that even “if we summoned the case file, one will find out there was no order of the court”.

Justice Mandokhail also asked Barrister Sajeel Shaharyar Swati — who was representing the ECP — about the commission’s stance after the ‘4-3’ judgement by Justice Syed Mansoor Ali Shah and Justice Mandokhail in which they dismissed the suo motu proceedings and held their view as ‘the order of the court’.

In view of the observations made by Justice Mandokhail, “it is the need of the day for the sake of justice that a full court be constituted”, emphasised Senator Farooq H Naek who filed an application for impleadment of the ruling coalition partners in the case. Mr Naek emphasised that the fate of the country depended on the outcome of the present petition and when the entire nation was confused.

“Why the full court; why can’t the seven judges who initially heard the suo motu hearing after two judges withdrew out of the nine-judge bench hear the case,” retorted Justice Mandokhail.

‘Order signed by all judges’

Chief Justice of Pakistan (CJP) Umar Ata Bandial who was heading the five-judge bench asked Farooq Naek to furnish written submissions in this regard. During the hearing, Justice Munib Akhtar wondered how the “minority could claim to be in majority when the March 1 short order was signed by all five judges”.

Justice Mandokhail wondered whether the note issued by Justice Yahya Afridi and Justice Athar Minallah had vanished in thin air or whether the CJP removed them from the bench. But the CJP observed that “whatever happens behind the chambers should be kept among ourselves”.

Instead of harping on the same point, the CJP observed that Attorney General for Pakistan (AGP) Usman Awan would assist the court on the footnote mentioned by Justice Syed Mansoor Ali Shah in his dissenting note on March 1 short order and had held that the opinions of Justice Afridi and Justice Minallah will be considered part of the judgement.

‘Shortest possible plan’

During the hearing, CJP Bandial asked the Defence as well as the Interior Ministry to come up with the shortest possible plan regarding the span of time in which the security and law and order situation in the country would be improved. He also asked the ECP to come up with a code of conduct in consultation with the political parties for holding the elections.

While pointing towards AGP Mansoor Usman Awan, the CJP regretted the political conflict between major political forces which has also sucked in other institutions.

“In fair elections or a fair game, we witness sportsman spirit but if you have gladiators, all you do is chop heads,” CJP observed, adding that “we do not need “gladiators but commitment”.

‘Lower political temperature’

Justice Bandial also asked the AGP to get a commitment on behalf of the government to lower the political temperature while also reminding that the PTI chairman will also give such assurance in writing.

Justice Bandial reminded that the two provincial assemblies stood dissolved – an event that cannot be rolled back and therefore “we have to move ahead”.

The CJP asked the ECP to come up with a practical plan for elections and said that polls could be held over a span of two days instead of just one day.

The ECP counsel argued that the commission had implemented the March 1 order in letter and spirit and “no deviation was or could ever be thought after which the election programme was issued”.

The Oct 8 election date was also not tentative, ECP counsel argued, adding the date was decided after the intelligence agencies assured the commission that they could achieve peace by then if they got more time.

Moreover, the intelligence agencies believe that the “threat level was very high and if we conduct elections in different constituencies on different dates, the terrorists may focus their attention on areas where the elections were being held”.

While citing a number of briefings and reports by intelligence agencies and other important stakeholders about the law and order situation in the country, the counsel argued that being a constitutional body, the ECP opinion, if reasoned on rational and bonafide intent, could not be substituted unless it was declared to be mala fide or ‘coram non judice’.

The counsel emphasised that no mala fide intention had been attributed to the ECP for delaying elections until Oct 8 in the PTI petition. He said Oct 8 could be made an order of the court to ensure that the election was held on that date and no deviation was made.

Published in Dawn, March 30th, 2023